Expert Opinions and the Garbage In Garbage Out Principle

Much like the computer science principle of Garbage In Garbage Out, if an expert opinion is based on facts a Court does not accept than the opinions will ultimately be of little value.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this principle.
In this week’s case (Amini v.Khania) the Plaintiff was involved in a 2009 collision that the Defendant was at fault for.    The Plaintiff suffered from chronic neck pain and headaches following the collision.   The Defendant arranged a defense medical exam with a physician who minimized the connection of the collision to the Plaintiff’s chronic symptoms noting the plaintiff had degenerative changes and that “he likely would have become symptomatic regardless of the accident“.
In rejecting this opinion the Court noted that the physicians assumed facts differed from those accepted by the Court and provided the following reasons:

[33]         I prefer the diagnosis of Drs. Beheshti, Javidan, and Jordan over the diagnosis of Dr. Dommisse in this regard.  I make a number of findings of fact that are contrary to the facts assumed by Dr. Dommisse.  First, I cannot find that Mr. Amini worked seven days a week after the accident for a year doing gardening, paving and fence making.  I find as a fact that he did not return to his landscaping work immediately and, when he did, it was in a reduced capacity due to the physical limitations caused by the accident.  Second, the opinion of Dr. Dommisse appears to be based on very little knowledge of the pre-accident functioning of Mr. Amini.  It appears that Dr. Dommisse did not know how many days per week Mr. Amini worked delivering papers both before and after the accident and that he had “no idea” of the housekeeping duties of Mr. Amini before and after the accident.  In fact, Dr. Dommisse testified that, after the accident:  “… I would doubt that Mr. Amini does any housekeeping personally, but, again, as I said, I have – I have no idea.”

[34]         I also cannot conclude that the degenerative changes described by Dr. Dommisse would have become symptomatic inevitably.  I am satisfied that degenerative change is not an infrequent finding on an X-ray of a person in their mid‑50s and, despite the presence of such degeneration, it cannot be assumed to already be or to become symptomatic.  The opinion of Dr. Dommisse that the onset of Mr. Amini’s symptoms would have been present by his mid-50s was only what he referred to as “my guess”.

[35]         I accept the opinion of Dr. Fuller that the prognosis for spontaneous resolution of symptoms of Mr. Amini “… can be considered guarded, if not poor”.  I also accept his opinion that Mr. Amini has reached maximum medical recovery.  I further accept the opinion of Dr. Fuller that degenerative change evidence is a normal phenomenon of aging not related to the accident.  I find that Mr. Amini sustained a grade 2 strain of his cervical and thoracic spine and his lumbosacral spine as a result of the accident which has resulted in decreased flexion and extension, reduced rotation of the cervical spine, and reduced lateral flexion, and that these injuries have continued to cause pain and suffering and physical restrictions.

In assessing non-pecuniary damages at $70,000 for the collision’s role in the lingering symptoms Mr. Justice Burnyeat provided the following reasons:

[46]         Here, I find that there was little, although some, likelihood that Mr. Amini would have begun to experience some pain as a result of the degeneration noted in his x‑rays.  Having made that determination, I also have made the finding that the degeneration was asymptomatic by age 55 when the accident occurred, despite the fact that Mr. Amini had two strenuous, labour-intensive occupations.  While I am in general agreement with counsel for Mr. Amini that the appropriate range of awards for non-pecuniary damages would be $75,000 to $85,000, I take into account all of the factors noted above and award non-pecuniary damages in the amount of $70,000.

Amini v. Khania, bc injury law, Mr. Justice Burnyeat, onset of symptoms in pre-existing condition

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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